McKnight v. Hutchison, (2012) 322 B.C.A.C. 313 (CA)

• Judge: Bennett, J.A.
• Court: Court of Appeal (British Columbia)
• Case Date: May 22, 2012
• Jurisdiction: British Columbia
• Citations: (2012), 322 B.C.A.C. 313 (CA);2012 BCCA 264

McKnight v. Hutchison (2012), 322 B.C.A.C. 313 (CA);

    549 W.A.C. 313

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. JL.012

Donald Dale McKnight (respondent/plaintiff) v. John Michael Hutchison (appellant/defendant)

(CA030236; 2012 BCCA 264)

Indexed As: McKnight v. Hutchison

British Columbia Court of Appeal

Bennett, J.A.

May 25, 2012.

Summary:

John Hutchison, Q.C., applied to remove from the inactive list his appeal from the order pronounced on September 27, 2002, finding him in breach of the partnership agreement to which he and McKnight were signatories. McKnight opposed the application. The appeal actually stood dismissed as abandoned by operation of s. 25(5) of the Court of Appeal Act, and Hutchison's application was treated as one to reinstate his appeal under s. 25(6).

The British Columbia Court of Appeal, per Bennett, J.A., dismissed the application. "The delay in this case is too long, inexcusable, and has prejudiced Mr. McKnight. This Court's rules have been completely and intentionally ignored by Mr. Hutchison. All of the factors weigh against his application."

Practice - Topic 8854

Appeals - Bar or loss of right of appeal - By abandonment of appeal - [See Practice - Topic 9205 ].

Practice - Topic 8907

Appeals - Procedure - Restoring appeal to general list - [See Practice - Topic 9205 ].

Practice - Topic 9205

Appeals - Abandonment of appeal - Reinstatement of abandoned appeal - The appellant applied to reinstate his appeal that stood dismissed as abandoned - Both parties were practicing lawyers - Any delay between the filing of factums in summer 2003 and March 24, 2011, had been explained (both parties were under the misapprehension that they could not yet proceed with the appeal) - The appellant's explanation for the one year delay at issue consisted of the demands of a busy law practice, an international trip, and clerical error - The British Columbia Court of Appeal, per Bennett, J.A., dismissed the application - First, the delay (a year less one week) was inordinate - Second, had the appellant hastened to set a hearing date, the circumstances under which he made the clerical error would not have arisen - The remaining explanations were ordinary occurrences for many lawyers - The appellant intentionally chose to do nothing until the last possible moment - Third, although much of the prejudice to the respondent occurred before March 24, 2011, the delay had further prolonged the effect of those consequences and exacerbated them - Fourth, prospects for a successful appeal were not particularly strong - Many of the grounds of appeal impugned the trial judge's findings of fact and credibility or other exercises of his discretion with which the court would not lightly interfere - Finally, the interests of justice militated against reinstatement - The court's rules deserved more respect than they had been accorded by the appellant - See paragraphs 20 to 31.

Cases Noticed:

Knight's Mineral Exploration & Co. Partnership v. Corcoran & Co. Partnership et al. (1997), 88 B.C.A.C. 317; 144 W.A.C. 317; 29 B.C.L.R.(3d) 1 (C.A.), refd to. [para. 12].

Rowan v. Dunwoody & Co. et al. (1999), 131 B.C.A.C. 311; 214 W.A.C. 311; 1999 BCCA 755, refd to. [para. 12].

Olenga v. Insurance Corp. of British Columbia et al. (2007), 235 B.C.A.C. 315; 388 W.A.C. 315; 2007 BCCA 87, refd to. [para. 12].

Kar Recovery, Ltd. v. K.D.A. - see E.J.R. v. K.D.A. et al.

E.J.R. v. K.D.A. et al. (2004), 204 B.C.A.C. 181; 333 W.A.C. 181; 2004 BCCA 503, refd to. [para. 13].

Deline v. Kidd (2003), 180 B.C.A.C. 124; 297 W.A.C. 124; 2003 BCCA 170, refd to. [para. 13].

Cabaniss v. Cabaniss (2009), 274 B.C.A.C. 12; 463 W.A.C. 12; 2009 BCCA 333, refd to. [para. 14].

Galloway v. Galloway - see M.A.G. v. R.H.G.

M.A.G. v. R.H.G. (2008), 257 B.C.A.C. 138; 432 W.A.C. 138; 2008 BCCA 302, refd to. [para. 15].

Reger v. Savage (2008), 261 B.C.A.C. 98; 440 W.A.C. 98; 2008 BCCA 406, affd. (2009), 279 B.C.A.C. 29; 473 W.A.C. 29; 2009 BCCA 547, refd to. [para. 16].

Canada (Attorney General) v. No String Enterprises Ltd. et al., [2001] B.C.A.C. Uned. 195; 2001 BCCA 671, refd to. [para. 17].

Foreman Estate v. Reid (2011), 311 B.C.A.C. 156; 529 W.A.C. 156; 2011 BCCA 394, refd to. [para. 17].

Booty v. Hutton (2009), 275 B.C.A.C. 139; 465 W.A.C. 139; 2009 BCCA 375, affd. (2010), 285 B.C.A.C. 263; 482 W.A.C. 263; 2010 BCCA 185, refd to. [para. 17].

Hannigan v. Hannigan (2005), 215 B.C.A.C. 219; 355 W.A.C. 219; 2005 BCCA 408, affd. (2006), 226 B.C.A.C. 100; 373 W.A.C. 100; 2006 BCCA 167, refd to. [para. 20].

Phillips v. Phillips (1999), 131 B.C.A.C. 204; 214 W.A.C. 204; 1999 BCCA 693, refd to. [para. 30].

Clock Holdings Ltd. v. Braich Estate et al. (2009), 278 B.C.A.C. 22; 471 W.A.C. 22; 2009 BCCA 437, refd to. [para. 30].

Statutes Noticed:

Court of Appeal Act, R.S.B.C. 1996, c. 77, sect. 25(5) [para. 12]; sect. 25(6) [para. 15].

Counsel:

Appellant appeared on his own behalf;

J.J. Arvay, Q.C., for the respondent.

This application for reinstatement was heard on May 22, 2012, at Vancouver, British Columbia, before Bennett, J.A., of the British Columbia Court of Appeal, who delivered the following reasons for judgment orally in Chambers on May 25, 2012.